Media law consultant and trainer David Banks told Press Gazette the argument over what is acceptable to publish and what isn’t “has been going on for a long time”.

He pointed to Associated Press photographer’s Nick Ut’s 1972 “Napalm Girl” picture and Kevin Carter’s 1993 photograph of a starving child being stalked by a vulture as examples.

“There’s always a debate going on in newsrooms about the nature of the imagery they get,” he said. “Is it too distressing? Is there a public interest in showing it?”

But he said social media had “changed the debate slightly” for the modern newsroom, adding: “Previously the mainstream media were the holders of the imagery,” he said.

“If they decided not to use it, they knew that it wasn’t going to get out there. Social media has shattered the ownership. Now editors are in a position where the image is going to be out there anywhere so they might as well publish it.”

But he added: “I still think picture desks and editors make a moral decision about this and don’t put imagery out there which people on social media with no filters are putting out there.

“We see much worse going up from ordinary social media users who share photographs on Twitter without thinking about what they are putting up.

“I still think there’s a degree of restraint used by a lot of newspaper in regards to the nature of the imagery and we saw that in the coverage this week.”

If an outlet has permission to use an image from the person who took it then there is no legal limitation to publishing it, but there are ethical considerations to be made and these are typically supported by codes of conduct either imposed by regulators or drawn up as internal standards.

When reporting on major incidents where people may have been injured or killed, journalists must be aware of Clause 4 of the code on intrusion into grief or shock (which has no public interest defence).

The code states: “In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.”

The “sensitivity” rule is key according to the Editor’s Codebook, a handbook that accompanies the code that expands on ruling precedents and interpretations for editors.

It says: “Journalism is an occupation conducted on the front line of life and, often, of injury and death. But while tragedy and suffering may go with the journalistic territory, insensitivity for its victims should not.

“The Code’s strictures on intrusion into grief or shock are designed to protect those victims at their most vulnerable moments. Newspapers have a job to do at such times and most do it well…

“As deaths are a matter of public record, the information is in the public domain and newspapers have a right to publish. Again, a balance has to be struck.

“The key, as expressed by the Code, lies in making inquiries with sympathy and discretion and in publishing sensitively. That does not mean newspapers should not publish sensitive material; it means that they should not do so insensitively.”

Banks said he thought the mainstream media were compliant with the code in their reporting of the terror attack that led to five people being killed, including PC Keith Palmer, the attacker and three members of the public.

“Yes we saw pictures of the officer being resuscitated, but we couldn’t see his face. If one of his family had been looking at the social media and websites on the day, I don’t think they would have been able to tell it was him,” he said.

Broadcasters are bound by the Ofcom Broadcasting Code. Reporters covering major incidents should be aware of the guidelines on suffering and distress under Section 8 on privacy.

It states: “Broadcasters should not take or broadcast footage or audio of people caught up in emergencies, victims of accidents or those suffering a personal tragedy, even in a public place, where that results in an infringement of privacy, unless it is warranted or the people concerned have given consent…

“Broadcasters should take care not to reveal the identity of a person who has died or of victims of accidents or violent crimes, unless and until it is clear that the next of kin have been informed of the event or unless it is warranted.”

The BBC also has its own Editorial Guidelines which state: “We will respect human dignity without sanitising the realities of war, terror, emergencies and similar events. There must be clear editorial justification for the use of very graphic pictures.”

Commonplace among newsrooms is the taking of pictures from social media – namely Facebook – of people who have been killed in an attack or disaster.

Doing so without permission is a clear breach of copyright, but also a risk many news organisations choose to take. Photos taken from closed social media groups (which are not open to the public) could also be a breach of privacy.

Banks said: “Copyright is owned by whoever takes the picture and the fact they have put it on a social media feed doesn’t mean they lost the copyright.”

He said social media sites such as Twitter, Facebook and YouTube licence images for use on their websites, but that did not give “anyone permission to take a picture and use it on their website”.

But, embedding content in an online story is allowed because it is within the functions of the social media platform. “What is not ok is cutting and pasting the picture and putting it up,” he added.

While there is a defence for the use of video snippets under fair dealing, the same does not apply to pictures because its “entire value” is taken when it is used.

“If people who owned these pictures were determined enough then they could have a go for breach of copyright. What they would have to show at court, however, is that they have been denied a profit from the picture,” said Banks. “Publishers would say that given they have put it up on a public forum it isn’t clear how they would profit from it.”

He added: “I guess if they were minded to get in touch with the newspaper they could ask for payment.”

Picture: Reuters/Toby Melville

Comments

1 thought on “Reporting on the Westminster terror attack: Taste, decency and the law for journalists”